Current Developments

Justice for the Rohingya: three roads to accountability

The past week (11-15 November 2019) has seen Myanmar facing an arsenal of legal challenges for alleged international crimes before the International Criminal Court (ICC), International Court of Justice (ICJ) and the federal court in Argentina. After decades of documented (gross) human rights violations against the Rohingya, efforts to secure accountability has gained momentum following multiple allegations of crimes against humanity and genocide by various United Nations (UN) investigative efforts, …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

German colonialism, reparations and international law

Reparations have become an increasingly important entry point to the conversation about the unfinished business of decolonization. Even though reparations have an established role in transitional justice and human rights, very little attention has been paid to the transition from colonialism or the legacies of colonial human rights abuses. While Namibia’s political independence was an important first step, the decolonization process did not confront two pivotal dimensions of colonial legacies. …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

Participation rights of indigenous peoples

Over the past three decades, indigenous peoples’rights have become an important component of international law and policy. This is a result of a movement driven by indigenous peoples, civil society and other stakeholders. One of its main achievements is the United Nations General Assembly’s 2007 adoption of the UN Declaration on the Rights of Indigenous Peoples. By 2010, the vast majority of UN member states supported the declaration, and none …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

From ideological fixity to moral argument

Today, international law – and international human rights law in particular – provides the dominant frame, often augmented by negotiations, for responding to acts of genocide. While this frame is necessary, it may not be sufficient to address the deeper emotional and psychological scars associated with the 1904–1908 genocide in erstwhile German South West Africa. This is because the colonial project’s ideological fixity deeply implicates aspects of international law. Moreover, …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

Racist repercussions and transgenerational exclusion

Legal means to deal with Germany’s colonial legacy

The German and Namibian governments seem to be about to finalize their negotiations on (the costs of) reconciliation. Several civil society actors and Ovaherero and Nama representatives criticize the procedure and want to be included in the negotiations – inter alia in a US lawsuit against Germany. The German government, however, denies that a genocide (in legal terms) occurred, referring to the principle of intertemporality in international law. What legal …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

The law as a (limited) means to address colonial injustice

Calls for reparations for historic injustices dominate current Namibian discourse. Such calls are directed to both the German and Namibian governments. The German government is called upon to take full responsibility for the heinous crimes committed against the Ovaherero and Nama peoples during the 1904–1908 genocide. After all, the impugned genocidal acts were perpetrated under the infamous orders of General Lothar von Trotha, who acted in the name of the …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

The genocide against the Ovaherero and Nama peoples

The German colonization of what became German South West Africa commenced in 1884 and ended with German forces’ surrender to the Union of South Africa in July 1915. The genocidal atrocities committed by German colonial troops from 1904–1908, sanctioned by General Lothar von Trotha’s 1904 and 1905 orders to exterminate the Ovaherero and Nama, significantly changed the course of history and socio-economic status of the people who lived in Namibia …

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Current Developments

An unlikely couple

Informed consumer choice in EU law and the Middle East conflict

We are currently witnessing a general trend towards more ethical consumption, more sustainable food production, and more awareness about the origins of products. However, it seems a far stretch to link this societal trend (in Europe) to one of the most complex territorial conflicts today, namely about the status of the Palestinian Territories, i.e. the West Bank and East Jerusalem (‘Territories’). Not for the ECJ. In Organisation juive européenne and …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

Decolonizing intertemporal international law

As with many legal disputes concerning Europe’s bloody colonial past, conversations about the Ovaherero and Nama’s right to reparations from Germany often reach a dead end at the mention of intertemporal international law. Accordingly, one should judge the past by the legal standards of its time, not by our modern perceptions. As the rules of the past were mostly nasty and brutish, the argument goes, the victims of colonial injustice …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

Historical originis of the Ovaherero and Nama Genocide

One cannot discuss the issue of the Ovaherero and Nama genocide without referring to the causes that gave rise to it. Although Eurocentric historiographers have written most of the history of our genocide, which therefore includes undue biases, people who follow the dictates of their conscience have also written records that are more objective. The first contact between Germans and the Ovaherero and Nama occurred through missionaries, followed by many …

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Colonial railway tracks near Aus in southern Namibia ECCHR
Colonial Repercussions in Germany and NamibiaSymposium

Colonial repercussions in Germany and Namibia

The colonial past and its complex repercussions are finally present in post-colonial European public discourse. So far, however, this has had little to no effect on formerly colonized societies. One reason for this is that post-colonial structural inequalities between the so-called Global North and Global South still prevent equal access to resources and discourses, thus obstructing discussions about colonial injustice and post-colonial repercussions. Both former colonial powers like the United …

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Current Developments

Beyond  the exhumation  of the dictator

The role of Spanish civil society  in the search of victims of enforced disappearance  during the Franco regime  

After the pronouncement of the Spanish  Supreme Court  endorsing the exhumation of the remains of the dictator Franco from the “Valle de los Caidos” (the enormous mausoleum built by the prisoners of Civil War where Franco was buried for 44 years), the actual exhumation finally took place this week. This measure was foreseen in  Royal Decree-Law 10/2018,  adopted by the socialist government of Pedro Sánchez in August 2018,   which modifies …

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Current Developments

Europäische Einigkeit in Action: Menschenwürde im Strafvollzug

EuGH konkretisiert Mindestanforderungen für Haftbedingungen im Kontext des Europäischen Haftbefehls

Dass eine nationale Justizbehörde beim Vollstrecken eines Europäischen Haftbefehls ausnahmsweise dem Grundrechtsschutz Vorrang vor der Wirksamkeit des Haftbefehls einräumen darf und muss, hat der Gerichtshof in der Rechtssache Aranyosi und Căldăraru erstmals bekräftigt. Im Urteil C-128/18 Dorobantu vom 15.10.2019 bestätigt der EuGH nun die enge Orientierung der grundrechtlichen Prüfung an der Rechtsprechung des EGMR. Zusätzlich betont er den absoluten Charakter des Verbots unmenschlicher oder erniedrigender Behandlung. Hamburg – Karlsruhe – …

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BofaxeCurrent Developments

In dubio contra bellum

Why the prohibition to use force will survive Turkey’s operation Peace Spring

What does Turkey’s operation “Peace Spring” against Kurdish militias in Northern Syria and the subsequent reactions of the international community mean for the prohibition on the use of force? “The right to self-defence may be regarded as broadened now,” some fear (e.g. here). But can the law regulating the use of force in international relations change so easily in the face of this intervention and careful reactions of the international …

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Interview

Law in capitalism

An interview with Katharina Pistor

Katharina Pistor is the Edwin B. Parker Professor of Comparative Law at Columbia Law School, New York, and Director of the Law School’s Center on Global Legal Transformation. After delivering the opening keynote address at the 4th annual LDRN conference at Humboldt University Berlin, Thomas Dollmaier sat down with her to discuss the constitutive role of law in the global capitalist system, the relationship between law and power, and the challenges …

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Announcements

Welcome to a new blog: “GPIL – German Practice in International Law“ has officially launched

International law depends on State practice and opinio iuris. Through their practice, States may therefore actively seek to influence the development of international law. It is thus paramount that State practice is (1) accessible to an international audience and (2) widely known. The blog “German Practice in International Law” (GPIL), initiated by Professor Stefan Talmon, takes up this task for Germany’s practice. GPIL publishes case studies on German practice for …

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Discussion

Harmony in the Chinese just war tradition

The Chinese approach to the relationship between jus ad bellum and jus in bello

One of the fundamental characteristics of international humanitarian law (IHL) is the separation between jus ad bellum and jus in bello, which was originally devised in the West, subsequent to the decline of its just war tradition in legal practice. China has adopted a philosophically different approach to the relationship between these two branches of law, and further, a distinctive moral rationale for compliance with IHL. At its core, the …

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Plurality of Law and DevelopmentSymposium

“Sexual orientation is not a fashion statement”

The LGBT community facing a social stigma in Africa

With the High Court’s judgment from June 11th 2019, judge Michael Elburu suspended section 164 a and c and section 165 of the Penal Code from 1965 which punish same-sex relations in Botswana with up to seven years in prison and ordered to modify section 167. In recognising the discriminatory nature of the laws in question, the Botswanan High Court gave hope to the LGBT (Lesbian- Gay- Bisexual- Transgender) community …

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Plurality of Law and DevelopmentSymposium

Burning issues in the “Land of the Future”

Conflicts over indigenous lands and the Amazon in Brazil

Since his first visit, Stefan Zweig had been fascinated by Brazil. Friendly people, good weather, and terrific landscapes. This fascination has led Zweig to publish a book called Brazil, Land of the Future (Brasilien – Ein Land der Zukunft). In this book, Zweig praised Brazil for its success in mixing individuals and groups, a true role model for multicultural societies. However, this supposed harmonious coexistence of multiple cultures in Brazil …

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Plurality of Law and DevelopmentSymposium

The new wave of law and development

This short note was inspired by the 2019 Law and Development Research Network Conference in Berlin.  The Conference was organised by the Chair for Public Law and Comparative Law at Humboldt University, and was attended by over two hundred scholars from thirty-nine countries under the heading ‘The plurality of law and development’. I am greatly indebted to those who offered their views at the conference; what follows, however, is a …

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Current Developments

(Un-)Precedented?

The relevance of the Urgenda case to the Children vs. Climate Crisis Communication

The communication brought by sixteen children before the Committee on the Rights of the Child to address the effects of states’ inaction on climate change seems at first glance unprecedented and foreign to our common ideas about international environmental law. Yet, as the Urgenda case shows, a rights-based approach to climate change is not wholly unheard of. Individual communications to the Committee on the Rights of the Child              The fact …

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Plurality of Law and DevelopmentSymposium

Reflections on the history and future of Law and Development

Recording of David Trubek’s Keynote Lecture at the LDRN Conference

Watch here the recording of  the Keynote Lecture of David Trubek (University of Wisconsin-Madison) who reflects upon the history and future of Law and Development and its main current challenges, as part of his keynote at the LDRN Conference at Humboldt University Berlin on 27 September 2019. The keynote is followed by a roundtable discussion with Celine Tan (University of Warwick), Morag Goodwin (Tilburg University), Johanna Cortes (University of Rosario), …

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Plurality of Law and DevelopmentSymposium

Social justice – a vehicle for transformative constitutionalism

Recording of Justice Madan Lokur’s Keynote Lecture at the LDRN Conference

Watch here the recording of the Keynote of Justice Madan Lokur (Supreme Court of India) who explains the challenges and opportunities of transformative constitutionalism as a vehicle for social justice, held at the LDRN Conference at Humboldt University Berlin on 26 September 2019.     If your browser does not support the video format, you can watch the keynote here: https://www.youtube.com/watch?v=2P6CYO-VzuE&t=10s

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Plurality of Law and DevelopmentSymposium

Towards comparative legal institutionalism

Recording of Katharina Pistor’s Keynote Lecture at the LDRN Conference

Watch here the Keynote Lecture of Katharina Pistor (Columbia Law School) reflecting on questions of method and theory through her approach of “comparative legal institutionalism”, opening the LDRN Conference at Humboldt University Berlin on 25 September 2019. The Keynote is followed by a comment by Prof. David Trubek (University of Wisconsin-Madison). If your browser does not support the video format, you can watch the keynote here: https://www.youtube.com/watch?v=caJ63vDbbUY&t=20s

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Current Developments

More than just a scientific report

The global assessment on biodiversity and ecosystem services as scientific and political tool

In May 2019, headlines worldwide suddenly became concerned with biodiversity. News sites and journals all quoted a report from the United Nations and its alarming conclusions that a million species could go extinct in the near future. In other terms, approximately one out of eight species, both plant and animal, is threatened with extinction. This massive extinction will be accompanied by a global ecosystem collapse and the consequent loss of …

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Current Developments

International climate change adjudication: A means to amplify voices of the global south?

Traditionally, the UN Climate change regime has been premised on an intergovernmental negotiations paradigm where political actors play the dominant role in the development of norms. In this post, I argue for using international adjudication as a supplementary tool to complement international negotiations. Adjudication, which entails the participation of impartial, third‑party decision makers, might help us overcome blind spots of negotiations by redistributing argumentative burdens and providing an expressive function …

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Plurality of Law and DevelopmentSymposium

Alternatives to Development in the Andes

Contesting cosmovisions and their path towards recognition

The concept of “development” has become a buzzword for social change, economic redistribution and ultimately socio-economic rights. This concerns both economic relations maintained in the international community built on the premise of State sovereignty and resulting intergovernmental agreements. Manifestations of such realities are manifold including a dominating WTO-steered legal order; new international trade deals such as current EU-Mercosur negotiations on the most extensive free trade zone on earth; the CETA …

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Current DevelopmentsResponse

Not for sale?

Some thoughts on human rights in cases of cession of territory

Pierre Thielbörger and Timeela Manandhar have given an innovative and thought-provoking account of the lawfulness of the incumbent US president’s potential plans to purchase Greenland. Vividly and succinctly they make their case against the possibility of a sale of the island under international law. However, their colorful picture of the legal scenery arguably glosses over some nuances. I do not intend to comment again on President Trump’s announced intention to acquire the …

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Current Developments

Thank you, Greta & friends!

Procedural aspects on the climate crisis-related communication to the UN Committee on the Rights of the Child

Sixteen children, among them the popular Swedish climate activist Greta Thunberg, from 12 different countries have filed a communication to the UN Committee on the Rights of the Child under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure. The communication complains of a rights violation by five different states: Argentina, Brazil, France, Germany and Turkey. The petitioners’ claim: Each of these states …

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Plurality of Law and DevelopmentSymposium

Scholars in mutual estrangement?

Transformative constitutionalism meets law and development

There is a curious estrangement between two scholarly communities that ought to have a lot in common: The first studies “transformative constitutionalism”, the second “law and development”. There is considerable thematic, geographical and methodological overlap between the two. Yet, the two strands of scholarship do not systematically connect. My argument in this post is that connecting the two approaches is productive because it confronts each side with its own blind …

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Current Developments

Nord Stream 2: Arbitration Notices from Moscow

Sometimes the unimaginable becomes reality: Donald Trump, his Democrat counterparts, the European Parliament and the European Commission are all united – in their opposition against the Nord Stream 2 pipeline. The construction of this mega project, a gas pipeline from Russia to Germany that is to supplement the existing Nord Stream twin-pipeline in the Baltic Sea, has caused a stir on both sides of the Atlantic. Observers who thought that …

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Plurality of Law and DevelopmentSymposium

Empowerment of indigenous and ethnic groups

Comparing cases on land use under the ACHPR and ECHR

Ten years ago, the European Court of Human Rights (ECtHR) decided on the admissibility of the case Handölsdalen Sami Village and Others v Sweden dealing with the land use of the Sami and their reindeer herds. In the same year, the Endorois case was decided by the African Commission on Human and Peoples’ Rights (AComHPR), concerning the land use of another indigenous people, the Endorois. The outcome of these two …

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Plurality of Law and DevelopmentSymposium

A slow revolution to protect the poor and vulnerable?

The International Monetary Fund’s Social Spending Strategy 2019

The International Monetary Fund (IMF) is the “single most influential international actor not only in relation to fiscal policy but also to social protection”. This is how the Special Rapporteur on extreme poverty and human rights has recently characterized the IMF. The statement recognizes the importance of IMF policy-making for the sustainable financing of social protection frameworks. In June 2019 the IMF acknowledged this role with the adoption of the …

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Plurality of Law and DevelopmentSymposium

Increasing the benefits, reducing the costs

Adding competitiveness to the theory and practice of free trade agreements and regional integration in Africa

With an increase in the spread and impact of independent regulatory agencies, Africa now has a nascent but significant network of competition authorities and other economic regulators.  This growth in African regulatory practice and influence contributes to the value of adding the factor of competitiveness to the theory and practice of African regional integration.  To add competitiveness may well increase the total benefits and speed of these developments of multinational …

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Plurality of Law and DevelopmentSymposium

The plurality of law and development

Reflections on a field in transformation

As a legal field, law and development is often traced back to the movement of US-American scholars and practitioners in the 1960s and 1970s, both epitomized and criticized by David Trubek’s seminal article “Scholars in Self-Estrangement”. While this strand remains an important reference, the story of law and development is arguably broader, more plural and more global. The plurality of law and development is marked by a variety of national …

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Current Developments

Only a small step forward

The shy contribution of the EU-Vietnam Investment Protection Agreement to the ISDS reform

On June 30th, 2019, the European Union signed a trade agreement and an investment protection agreement with the Socialist Republic of Vietnam. This is the third time the EU has used its exclusive competence in the field of foreign direct investment (FDI) to conclude an investment protection agreement (IPA) vis-à-vis an extra-European country, after CETA’s investment chapter and the EU-Singapore IPA. With this “new generation” of investment treaties, the EU …

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Current Developments

Repatriated to “Prison”

Landgrabbing as a tool of segregation in Myanmar

The Rohingya, a religious and ethnic minority in Myanmar, have been systematically persecuted and discriminated against for decades. The government and the military (“Tatmadaw”) enforced various measures against the Rohingya, such as forced labor, denial of education and basic healthcare, and extreme restriction on traveling, and have made parts of Rakhine State an “open-air prison” for many Rohingya. The Tatmadaw’s repeated rounds of gruesome violence against them significantly exacerbated the …

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Current Developments

Future of whaling vis-à-vis Japan’s withdrawal from IWC

Japan conducted its first successful commercial whale hunt on July 1, 2019 since thirty years, against significant resistance from the international community, after it had formally withdrawn from the International Convention on the Regulations of Whaling (ICRW) in December 2018 by exercising the ‘opting out’ clause. The recommencement of hunting poses pertinent questions for international law: What legal impact will the withdrawal have on the work of the International Whaling …

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BofaxeCurrent Developments

Playing with Fire

Is the aid pledged by the G7 an offer Brazil’s President Bolsonaro cannot refuse?

“Our house is burning”, French President Macron found graphic words to address the wildfires in the Amazon rainforest, which have reached threatening levels in the past weeks. 80,000 fires this year alone have resulted in the loss of approximately 350,000 hectares of rainforest. Notably, Brazilian President Bolsonaro is known to support the ‘slash-and-burn’ agriculture, which is responsible for most of the fires, and only initiated a two month ban of …

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Current Developments

What’s next to preserve the linguistic richness of Indigenous Peoples?

Beyond the International Year of Indigenous Languages

This year, 2019, marks the International Year of Indigenous Languages. Based on the United Nations (UN) General Assembly resolution 71/178, it represents a massive effort to finally raise awareness on the invaluable richness of Indigenous languages. This initiative is primarily led by the UN Educational, Scientific and Cultural Organization (UNESCO), but it involves all the UN bodies directly dealing with Indigenous Peoples’ rights (e.g., the UN Permanent Forum on Indigenous …

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Current Developments

Manual scavenging: outlawed, yet persisting

The stinking legacy of suffocation and stigma captures the degrading practice of Manual Scavenging in India. Twenty-six years after this repulsive practice has been outlawed by the Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, there are still 182,505 manual scavengers across India, with 740,048 households using the services of manual scavengers for clearing out human excreta. Alarmingly, this number does not include septic tanks, public sewers, and railway …

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Current Developments

A chain as strong as its weakest link

Climate science and legal causation after the Mozambique floods

In spring 2019, Mozambique was hit by a large-scale disaster. Cyclones Idai and Kenneth tore through the country on 14 March and 25 April, resulting in heavy rainfall and causing major flooding in five of the country’s eleven provinces. The disaster had devastating impacts on affected communities’ enjoyment of their human rights. UNICEF’s Humanitarian Situation Report, published on 31 July 2019, estimates that 1.7 million people in Mozambique continue to …

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Cynical International LawSymposium

A rule to catch them all

How European policies on combating abuse of rights in tax law aim at countering cynicism by non-state actors

One of the legal regimes where cynicism is most prevalent in the eye of the public is tax law. After the so-called ‘Panama Papers’ and ‘Paradise Papers’ public debate on fair taxation of companies was rekindled at the World Economic Forum 2019, where Rutger Bregman stressed that it is cynical when people talk about philanthropic engagement, equality and transparency, yet ‘almost no one raises the real issue of tax avoidance’. …

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Cynical International LawSymposium

Back in time to Roman Law

Thoughts on an analogy of ‘Abuse of Right’ in International Law

The prohibition of abuse of right calls into question that branch of legal positivism that sees law as a ‘pure’ discipline with necessarily no connection with morality (the so-called exclusive positivism). Law prohibits something that is allowed within its own system, but that is rejected according to other rules (the rules of morality). Is the law therefore flawed? Is it cynical? One might object and say that if the prohibition …

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Cynical International LawSymposium

How to be cynical: some suggestions

Livestream of Prof. Gerry Simpson’s Keynote Lecture at the Conference ‘Cynical International Law?’, 6 September 2019

Watch here the livestream of Prof. Gerry Simpson’s Keynote Lecture, opening the Working Group of Young Scholars in Public International Law’s (Arbeitskreis junger Völkerrechtswissenschaftler*innen – AjV) and the German Society of International Law’s (Deutsche Gesellschaft für Internationales Recht – DGIR) joint conference Cynical International Law? Abuse and Circumvention in Public International and European Law held at Freie Universität Berlin on 6-7 September 2019. Find the conference program here. What might …

For further live updates on the conference on Friday and Saturday, follow Völkerrechtsblog’s Twitter account.

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Cynical International LawSymposium

Cynicism? Yes, please!

Embracing cynicism at the International Criminal Court

Debates surrounding cynicism in international law have an inherently negative focus. But why not try to take something positive-constructive out of the cynicism an institution is experiencing? Since there are few institutions, which are currently facing more cynical backlash than the International Criminal Court (ICC/Court), this piece will take a look at the reasons and at the question how cynicism manifests itself in the context of the Court and how …